THE FREE EXERCISE TEST AFTER EMPLOYMENT DIVISION v SMITH

1.  Does the government regulation condition the availability of state benefits upon an applicant's willingness to work under conditions forbidden by his religion?  (If so, as Sherbert v Verner and other cases hold, the regulation must be narrowly tailored to support a compelling state interest.)

2.  Does the law apply to religiously motivated conduct which is also subject to a degree of protection under other provisions of the Constitution (such as the directing of the education of children by their parents might be protected by substantive due process)?  (If so, in these "hybrid cases" such as Yoder v Wisconsin, the law must be narrowly tailored to support a compelling state interest.)

3.  Does the law punish one because of his or her religious status (e.g., a law prohibiting members of the clergy from running for state electoral office)?  (If so, the regulation must be narrowly tailored to support a compelling state interest.)

4.  Does the law target religious conduct (e.g., a law prohibiting bowing down in front of golden calves)?  (If so, the regulation must be narrowly tailored to support a compelling state interest.)

5.  For all other generally applicable criminal laws that might apply to religiously-motivated conduct, the law need only have a rational basis.  [Employment Division v Smith (1990)]



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